Deal over Dillsboro dam could be afoot

Five years into a bitter fight over the fate of the Dillsboro Dam, Duke Energy showed its first sign of budging this week.

Following a mediation session in Washington, D.C. Duke pledged to make Jackson County a “counter offer” in the tug-of-war over the dam. Duke wants to tear down the dam, and Jackson County wants to save it. The case is currently before the U.S. Court of Appeals.

News of the counter offer came at the end of a lengthy closed meeting on Monday (June 1) between commissioners, two attorneys and a third one on conference call.

Word that the Dillsboro dam would be a topic of discussion at the commissioners meeting had apparently circulated among dam supporters, who turned out around 15 people included Dillsboro town leaders, merchants and residents donning green “save the dam” tags. Several spoke up for saving the dam during the public comment period at the start of the commissioners meeting.

When commissioners retreated into closed session, spectators packed into the small foyer outside the room and loitered about for an hour and a half in anticipation of an announcement by the county.

When the crowd filtered back in, Commissioner Chairman Brian McMahan reported the board would hold off on any action regarding the dam until it had a chance to see Duke’s alleged offer. Jackson County commissioners gave Duke until the end of the day Friday (June 5) to submit their offer. Commissioners will reconvene at 4 p.m. Monday, June 8, to talk about it.

When commissioners stood to adjourn the meeting, McMahan walked over to where Duke’s attorney was sitting in the audience and pointedly said, “If you are serious about this, we need to see that counter offer by 5 p.m. Friday.”

Trump card or bluff?

The mediation between Jackson County and Duke last week was not the first in their five year history. Previous attempts at mediation had not been successful, however.

Duke may have finally been spurred toward cooperation by a looming threat by Jackson County to use its ultimate trump card: condemning the dam under the right of imminent domain. Jackson first broached the idea publicly almost a year and a half ago. It has resurfaced in recent months.

The vote that Jackson County commissioners postponed Monday night was presumably the one to set the wheels of condemnation in motion.

Fred Alexander, a Duke spokesperson, protested the notion that imminent domain was an option.

“There is no legal basis for the condemnation of Dillsboro dam,” Alexander told commissioners. “The county is under a Catch 22. Under the Federal Power Act, the county can only condemn the Dillsboro dam if it plans to maintain it as a hydropower plant. However, North Carolina law only allows the county to condemn for nine specific purposes, none of which include operating a dam.”

Other opinions hold that Jackson County use the right of imminent domain to seize ownership of the dam, and there would be nothing Duke could do about it.

“There are plenty of purposes the county is authorized to use imminent domain for,” said Charles Szypszak with the Institute of Government at UNC-Chapel Hill. “If the purpose is within one of those there is almost no chance of contesting it. There is very little constraint. A challenge is very rarely successful.”

Parks and recreation is one accepted justification behind imminent domain. Coincidentally — or maybe not — the county recently hired a firm to develop a conceptual design for a river park that uses the Dillsboro Dam as a focal point.

Jackson County would have to pay Duke fair market value for the dam. Duke could challenge the offer price in court.

Dillsboro dam supporters were hopeful than Duke may be coming around.

“It sounds to me like the pendulum is swinging,” said Dave Waldrop, who spent his boyhood fishing around the dam. Waldrop said whatever this counter offer is, however, better involve keeping the dam.

A long road

Jackson County has spent more than five years fighting Duke Energy’s plans to tear down the Dillsboro dam. Tearing down the Dillsboro dam is the cornerstone of Duke’s environmental mitigation plan for its network of hydropower operations in the region.

Jackson County commissioners would rather see another form of mitigation that would benefit a larger sector of the population, and have proposed cash payments instead that Jackson County could put toward a greenway along the river or environmental initiatives, along with turning ownership of the dam over to the county.